27 February 2004

The Chief Justice of the Family Court, Alastair Nicholson, today launched a new program which will result in 100 children's cases being heard under a less adversarial system of justice.

The program, which is being piloted in the Court's Sydney and Parramatta registries, will start on Monday, 1 March 2004.

Justice Nicholson said: "I have long been concerned that the formal legal rules about how cases are heard can distract attention from the best interests of children.

"Under the common law system of numerous English speaking countries including Australia, the approach is adversarial. Opposing parties have control of how the case runs and the evidence that will be put before the Court.  They often take a combative stance and litigation is prone to be drawn out and costly.  They are too focussed on the parties' complaints about each other instead of the future of the child.

"In the search for a better way, the Court undertook extensive research, including observing how German and French Courts deal with children's matters. We have taken the best features of their approaches and adapted them to the Australian family law system.

"An essential feature of the program is that one Judge is in charge of the case and will play the leading role in relation to the conduct of the hearing.  This includes deciding the issues to be determined, the evidence that is called, the way the evidence is received and the manner in which the hearing is conducted. The Judge will also be able to shift between deciding facts and issues and using mediation techniques to assist in determining the case.

"The Children's Cases Program is not compulsory. Parties involved in children's cases will have the system explained to them and will be advised to get independent legal advice.

"The program is open to litigants without legal representation. Although the presence of lawyers is highly desirable in all family law litigation, the Court recognises that there are circumstances where parties either do not wish to, or are unable to afford legal representation.

"The Court is indebted to the Legal Commission of NSW for providing assistance in explaining the program to people who do not have a lawyer. All parties need to consent to entering the program otherwise their cases will follow the routine pathway to trial," Justice Nicholson added.

The Children's Cases Program:  A New Way of Working with Parents and Others in Children's Cases

The Family Court of Australia is trialing a new program in its Sydney and Parramatta registries. The program is intended to reduce the adversarial nature of the proceedings and treat disputes about children in a more child focussed way than the traditional adversarial system allows.

This program aims to reduce the complexities of children's cases and respond to their special nature and the needs of children. A major feature of it is the active role taken by the Family Court Judge allocated to the case in how the hearing is conducted. This is designed to encourage the parties (who are most often, but not necessarily, the parents) to concentrate on the interests of the children and to consider ways in which the dispute may be resolved at all stages of the proceedings.

This brochure tells you about this new program, including:

  • its major features
  • the potential benefits of being involved;
  • how you can become part of it; and
  • how the case will progress if you do.

What is this new program?

The program is a new way of handling trials of cases involving disputes about children. It is available for a limited time at Sydney and Parramatta. The experiences of the clients who agree to be involved, the court processes and the results will be monitored, evaluated and compared against other cases that go through the Court in the normal 'adversarial' way. If this new way is successful, the aim will be to introduce it permanently for all children's cases heard in the Family Court of Australia.

What is different?

Traditional adversarial hearings (proceedings) resemble a contest between the parties. The parties, or their legal representatives, are responsible for deciding how they prove their claims to the court and the judge takes no responsibility for this. Often each party provides the Court with evidence about the other person's past behaviour in the hope of convincing the Judge that he or she would be a better parent in the future. This can be destructive to the parties' future relationship with each other and with their children. It can also be lengthy and expensive, and often requires knowledge of complex and apparently rigid rules about what information the Court can and cannot take into account. The adversarial system allows parties to provide the Court with unnecessary material which does not assist Judges in their task of deciding which outcome will be best for the children concerned.

This Children's Cases Program is intended to be less adversarial and more focused on the children and on what is best for their future rather than what happened in the past. The processes will be simpler and less formal than are those used in traditional hearings.  The Judge will take a more active role when considering how the parents can provide for the future needs of the child. This means the Judge will concentrate on the major issues in dispute and on what is in the child's best interests.

There may be direct discussion between the Judge, you and the other parties or witnesses. The Judge may also invite you to consider ways in which the dispute may be resolved as the matter proceeds. Importantly, the Judge will decide what is to happen based on the evidence received during the hearing and in the process may assist you to reach an agreed solution.

Although the way your case is heard will be different, the law is the same.  The Family Law Act requires the Judge to regard the best interests of the child as the paramount consideration. In determining those best interests he or she must also consider a number of factors, including the child's wishes, protection from physical or psychological harm and the capacity of each parent to provide for the child's needs. Your right to a fair hearing before an unbiased court will not be affected. The principles of natural justice and procedural fairness will continue to be applied rigorously.

What is the Judge's role?

The same Judge will hear your case until a solution is reached, either by agreement or by his or her decision. You will have opportunities to speak directly to the Judge and the proceedings will be less formal than is currently the case.

However, if an agreement cannot be reached, your Judge will be the final decision maker. Very early, with your help, the Judge will decide what your case is about and how the key issues will be dealt with. Should any new child -related issues arise along the way, these will also be able to be dealt with.

Your Judge will try, in a neutral way, to help you reach an agreement. Please be aware that if you do not like how the Judge decides an issue or part of your case, he or she is unlikely to stop hearing the case, even if you ask.

What can this new program offer me?

It is intended to have a number of advantages:

  • Shorter Hearings – you should need to spend much less time at the Court, with cases expected to be completed in about half the time of those that are not included in this new program.
  • Earlier Hearings – your case should be decided much sooner after being accepted into the new program than it would be in the current system.
  • Simplicity and flexibility– rules about process will be kept to a minimum.
  • Potential to save costs – because there will be fewer and shorter documents required, hearings will be shorter and your case will be completed sooner.

How can my case become part of the new program?

You can become involved if your case has not resolved through mediation and both you and the other parent (party) consent to being involved. The Court will then make the necessary orders for its inclusion.  Consent forms are available at the Sydney and Parramatta Registries of the Court.

Can I withdraw from the program once I have given my consent?

No.  Once your case is part of the new program, it will continue there even if you change your mind, unless the Judge decides otherwise.

Can I participate if I do not have a lawyer?

Yes. While the Court always encourages people to be legally represented if possible, you do not have to have a lawyer.  In this situation you may be able to have a support person sit with you in Court.

Should I get legal advice before I consent to my case being in the new program?

Yes. Even if you are not legally represented at the hearing you need to be informed about how the process is different and what that means for you. You should seek independent legal advice from a private solicitor or from a solicitor from the Legal Aid Commission of New South Wales.

How will my case proceed?

As soon as possible after you enter the new program, your Judge will meet with all parties to identify the important issues in dispute. You will have been asked to complete a questionnaire when your case is included in the program, and the information this provides will assist in this process. Around the time of your first meeting with the Judge a representative for the children may be appointed. When the key issues are identified, your Judge will decide what evidence is needed, how it is to be presented and what the next steps will be.

Most likely there will be several meetings (hearings) with your Judge. Each meeting may be quite informal, even at times resembling a 'discussion' rather than the traditional structured questioning that occurs in adversarial hearings.

A special feature of the program is that the Judge may hold private discussions with each party separately if he or she thinks this will be helpful. These discussions are recorded and the other party can have a copy of the transcript of what was said if he or she wishes to do so.

Wherever possible the Court will deal with minor procedural matters by telephone, such as giving leave to inspect documents.  This will save you costs and time.

Some Rules of Court will be modified to fit in with the quicker and simpler procedure in this program. This will be made clear to you as your case proceeds.

Where will the evidence come from?

You and the other parties will be the main sources of evidence, with the Judge deciding who else may be called as a witness and on which issues.

If the Judge decides one is necessary, the next most important source of evidence will be the Family Report. It will usually be prepared by a Court employed mediator appointed for the purpose, as early as possible. It will be limited to the issues identified by the Judge and will obtain the views of the children, if the Judge decides this is necessary.  The mediator, whilst preparing the report, will also try to assist you and the other parties to resolve your dispute.

You and the other parties will receive a copy of the Family Report. You will have time to consider it before the hearing continues.  If any of the information in it needs to be expanded upon, this may be done by oral evidence.

Depending on the circumstances of your case, the Judge may order a report from a Court appointed expert. This will be dealt with in the same way as a Family Report.

You and the other parties to your case will be sworn in as witnesses once you have entered this new program. Everything said in Court to the Judge will then become part of the evidence.

Unless the Judge otherwise orders, he or she may take into account everything that is said or occurs before the Judge, a mediator or a Court appointed expert during the progress of your case after it enters the new program.

More detail about how cases in this new program will be run is set out in a Practice Direction issued by the Chief Justice. A copy of the Practice Direction can be obtained from the Sydney and Parramatta Registries of the Court.

How will evidence be handled in this new program?

There are some important differences in how evidence is handled between this new program and normal adversarial proceedings.  The main differences are:

  • Once the issues have been defined, the Judge will decide, in discussion with you and the other parties (and your lawyers, if any) what witnesses are to be called.  [In adversarial proceedings the parties normally decide these things.] The Judge may reject proposed witnesses if the evidence they can give is not, in his or her view, relevant or of significant importance.  Also, the Judge will approve all witness subpoenas and may direct the issue of a particular subpoena to ensure that proper evidence is before the Court about an important matter. This will be explained to you as the case proceeds.
  • Only you and the other parties will give written evidence by way of affidavit, and then only about the issues your Judge has identified as relevant.  If witnesses are required they will provide a written statement/outline of the evidence they can give about any of the identified issues.  This statement will be made available to each party.  The witnesses will give their evidence orally or, if there is no dispute about its contents, a party may tender a witness statement. 
  • If expert witnesses are necessary they will provide a short written report, and if they  are required to provide more details, they will be able to give evidence by telephone or videolink to save expense and time.
  • The Judge can take "hearsay" evidence into account in coming to a decision. [Hearsay evidence is where a witness repeats something that someone else said].  In adversarial proceedings, this is usually restricted to a witness repeating what a child has said.  However, if the hearsay relates to an important matter, the Judge will usually require direct evidence.
  • All evidence (whether written or provided orally) will be provisionally admitted. Objections to its inclusion will only be made on grounds of illegality and other serious grounds.  The Judge will then decide what material will be treated as evidence and what weight will be given to it.

Can I appeal if I am not happy with the result?

Yes. Your ordinary rights of appeal are not affected except that you will not be allowed to complain about matters to which you have agreed and, in particular, your consent to participating in this program.